PLAN OF ACQUISITION
OF ALL THE OUTSTANDING STOCK
OF XXXXX BANK
BY
XXXXX BANCORP, INC.
THIS PLAN OF ACQUISITION (the "Plan") is entered into as of this 26th
day of January 2005, by and between XXXXX BANK, a commercial bank organized
under the laws of the State of New Jersey, with its principal office at 000
Xxxxxx Xxxxx, Xxxxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000 (the "Bank") and XXXXX
BANCORP, INC., a corporation organized under the laws of the State of New Jersey
with its principal office at 000 Xxxxxx Xxxxx, Xxxxxxxxxx Xxxxxxxx, Xxx Xxxxxx
00000 ("Bancorp").
WHEREAS, the Bank is desirous of forming a bank holding company because
it believes that the holding company will provide it with future flexibility in
undertaking the Bank's current activities and future new activities and may
assist the Bank in raising capital and remaining an independent institution, if
the Board determines that remaining independent is in the best interests of the
Bank and its shareholders; and
WHEREAS, the Bank's Board of Directors has determined that the
formation of a holding company is in the best interest of the Bank's
shareholders; and
WHEREAS, Bancorp was formed under the New Jersey Business Corporation
Act on behalf of the Bank at the direction of the Bank's Board of Directors; and
WHEREAS, N.J.S. 17:9A-355 et seq. authorizes a New Jersey corporation
and a state-chartered bank to enter into a plan of acquisition to exchange
shares in the bank for shares in the holding company, to submit the plan to the
New Jersey Department of Banking and Insurance for approval and implement the
plan if it is approved by the Bank's shareholders, subject to the right of the
Bank's shareholders to dissent and receive the fair value of their shares; and
WHEREAS, the Boards of Directors of the Bank and Bancorp have adopted
this Plan pursuant to the provisions of N.J.S. 17:9A-357.
NOW, THEREFORE, the parties hereto agree as follows:
1.0 Plan of Acquisition Required by Section 17:9A-357.
1.1 Name and Address of Acquiring Corporation. The name and the address
of the acquiring corporation is:
Xxxxx Bancorp, Inc.
000 Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000
1.2 Name and Address of Participating Bank. The name and address of the
participating bank is:
Xxxxx Bank
000 Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxxx, Xxx Xxxxxx 00000
1.3 Names and Addresses of Directors of the Acquiring Corporation. The
names and addresses of the members of the Board of Directors of Bancorp are:
Name Mailing Address
---- ---------------
Xxxx X. Xxxxxx 000 Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxxx, XX 00000
Xxxxxx X. Xxxxxx 000 Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxxx, XX 00000
Xxxxxxxxx X. Xxxxxxx 000 Xxxxxx Xxxxx
Xxxxxxxxxx Xxxxxxxx, XX 00000
1.4 Shares of Other Banks Owned by Acquiring Corporation. Bancorp does
not own any shares of capital stock of any other bank.
1.5 Terms and Conditions of Acquisition. The terms and conditions of
the acquisition are the terms set forth in Sections 2, 3, 5, and 6 hereof.
1.6 Effective Date. The effective date shall be the date selected in
accordance with Section 7 hereof.
1.7 Other Provisions. There are no other provisions of the Plan except
as set forth herein.
2.0 Capitalization; Terms of Acquisition.
2.1 Capitalization of Bancorp. Bancorp is authorized to issue
10,000,000 shares of common stock, par value $0.10 per share ("Common Stock")
and 1,000,000 shares of serial preferred stock, par value $0.10 per share.
Bancorp shall not issue any shares of capital stock prior to the Effective Date.
2.2 Capitalization of the Bank. The Bank is authorized to issue
10,000,000 shares of common stock, par value $5.00 per share (the "Bank Common
Stock"). As of December 31, 2004, 2,175,559 shares were issued and outstanding.
2.3 Terms of Exchange. Upon the Effective Date, each outstanding share
of the Bank Common Stock shall be converted into one share of Common Stock,
subject to the rights of dissenting shareholders as provided in Section 4
hereof. Each outstanding option to purchase shares of Bank Common Stock under
the Bank's 1999 Employee Stock Option Plan, 2002 Employee
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Equity Incentive Plan and 2003 Stock Option Plan shall be converted into an
option to purchase the same number of shares of Common Stock on the same terms
and conditions, and each outstanding Warrant to Purchase Common Stock of Xxxxx
Bank issued upon the Bank's organization in 1998 shall be converted into a
warrant to purchase the same number of shares of Common Stock on the same terms
and conditions.
3.0 Mode of Carrying into Effect the Plan of Exchange.
3.1 Exchange Effective Immediately. Upon the Effective Date, each
certificate representing shares of the Bank Common Stock (other than shares held
by a dissenting shareholder) shall by virtue of the Plan and without any action
on the part of the holder thereof, be deemed to represent the same number of
shares of Common Stock, and shall no longer represent the Bank Common Stock. As
set forth in Section 4 hereof, after the Effective Date, any dissenting
shareholder who complies with the requirements of N.J.S. 17:9A-360 et seq. shall
have only the rights accorded dissenting shareholders and such stock
certificates shall not be deemed to represent shares of Common Stock or the Bank
Common Stock.
3.2 Issuance of Shares of Bank to Bancorp. Upon the Effective Date, the
Bank shall issue to Bancorp one share of Bank Common Stock for each share of
Bank Common Stock outstanding immediately prior to the Effective Date.
3.3 Means of Effecting Exchange of Certificates of Bank Stock for
Certificates in Bancorp. Upon or immediately after the Effective Date, the Bank
shall notify each Bank shareholder of record on the Effective Date (except a
holder who is a dissenting shareholder as provided in Section 4 hereof) of the
procedure by which certificates representing the Bank Common Stock may be
exchanged for certificates of Common Stock. The Bank's transfer agent, Registrar
and Transfer Company, Cranford, New Jersey, shall act as exchange agent in
effecting the exchange of certificates. After receipt of such notification, each
holder shall be obligated to surrender the certificates representing the Bank
Common Stock for exchange into certificates of Common Stock as promptly as
possible.
4.0 Dissenting Shareholders.
Any shareholder of the Bank who desires to dissent from the
transactions contemplated by the Plan shall have the right to dissent by
complying with all of the requirements set forth in N.J.S. 17:9A-360 et seq.,
and, if the transactions contemplated by the Plan are consummated, shall be
entitled to be paid the fair value of his shares in accordance with those
provisions.
5.0 Conditions for Consummation of the Plan and Right of the Bank to
Terminate the Plan Prior to Consummation.
5.1 Conditions for Consummation. The consummation of the transactions
provided for under the Plan is conditioned upon the following:
(a) Approval of the Plan by the Commissioner of Banking of the
State of New Jersey;
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(b) Approval of the Plan by the holders of two-thirds (2/3) or
more of the outstanding Bank Common Stock entitled to vote; and
(c) Non-objection of the Board of Governors of the Federal
Reserve System to a notification by Bancorp of its proposed acquisition
of Bank.
5.2 Right of Bank to Terminate Plan Prior to the Effective Date. At any
time prior to the Effective Date, the Board of Directors of the Bank may
terminate the Plan if in the judgment of the Board of Directors the consummation
of the Plan is inadvisable for any reason. To terminate the Plan, the Bank's
Board of Directors shall adopt a resolution terminating the Plan and, in the
event such termination occurs after the shareholders of the Bank have voted on
the Plan, promptly give written notice that the Plan has been terminated to the
shareholders of the Bank. Upon the adoption of the Board resolution, the Plan
shall be of no further force or effect and the Bank and Bancorp shall not be
liable to each other, to any shareholder of the Bank or to any other person by
reason of the Plan or the termination thereof. Without limiting the reasons for
which the Bank's Board of Directors may terminate the Plan, the Board may
terminate the Plan if:
(a) The number of shareholders dissenting from the Plan and
demanding payment of the fair value of their shares would in the
judgment of the board render the Plan inadvisable; or
(b) The Bank or Bancorp fails to receive, or fails to receive
in form and substance satisfactory to the Bank or Bancorp, any permit,
license or qualification from any federal or state authority required
in connection with the consummation of the Plan.
6.0 Expenses.
The Bank will bear all of the expenses incurred by the Bank and by
Bancorp in connection with the Plan, including, without limiting the foregoing,
all attorneys, accountants, and printing fees and all licensing fees incurred in
connection with the Plan and the formation of Bancorp.
7.0 Effective Date.
The Plan shall become effective upon a date selected by the mutual
agreement of the parties hereto (the "Effective Date"). The date so selected
shall be within a reasonable period after the conditions set forth in Section
5.1 have been complied with and the Bank has received any approvals or consents
without which it might terminate the Plan under Section 5.2. At least one week
prior to the agreed upon Effective Date, the Plan shall be filed with the New
Jersey Department of Banking and Insurance together with a certification by the
President or a Vice President of the Bank that the Bank's shareholders have
approved the Plan and a writing specifying the Effective Date.
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IN WITNESS WHEREOF, the Board of Directors of each of Xxxxx Bank and
Xxxxx Bancorp, Inc. have authorized the execution of the Plan and caused the
Plan to be executed as of the date first written above.
XXXXX BANK
ATTEST:
By: /s/Xxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxxxx Xxxx X. Xxxxxxxxxx
---------------------------
Corporate Secretary President and Chief Executive Officer
XXXXX BANCORP, INC.
ATTEST:
By: /s/Xxxx X. Xxxxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxxxxx Xxxx X. Xxxxxxxxxx
---------------------------
Corporate Secretary President and Chief Executive Officer
